ORDER
Ratnam, J.
1. Defendants 2 to 4 in O.S. No. 197 of 1967, District Munsifs Court, Devakottai, are the petitioners in this Civil Revision Petition. The 1st respondent herein and his mother, one deceased Mahamayee Ammal, instituted that suit praying for a decree for partition and separate possession of their one-third share in the A and B schedule properties to the suit. On the death of Mahamayee Ammal, respondents 2 and 3 herein, who are the sisters of the 1st respondent and daughters of deceased Mahamayee Ammal, were impleaded as defendants 21 and 22 in the suit. Consequent upon the death of the mother of the respondents herein, the 1st respondent prayed for a decree for partition of one-third share on his behalf and on behalf of respondents 2 and 3 herein. Though the suit was resisted by the petitioners and others on several grounds, on 24.2.1977 when the suit was posted in the special list, the petitioners were absent and were set ex parte and on the same day, a preliminary decree for partition and separate possession as prayed for by the 1st respondent was passed in the suit regarding the suit properties. In I.A. No. 457 of 1977, the petitioners herein and others prayed for the relief of selling aside the ex parte decree passed against them on 24-2-1977 on the ground that the 1st respondent represented to them that he would inform the court that the subject matter of the dispute between the parties in O.S. No. 197 of 1967 and O.S. No. 531 of 1971 had been referred for bringing about a settlement by Panchayat to one Thettamangalam Ramanatha Thevar and therefore, the suit may be adjourned to some other dated, but he did not do so and that was responsible for their absence from Court that day. It was also their further case that there was some delay in their further case that there was some delay in their reaching the Court on that day and that led to the passing of the ex parte decree. This application was resisted by the 1st respondent herein on the ground that the reasons given by the petitioners were not true and that they had what only and wilfully refrained from attending Court and hence, the petition to set aside the ex parte decree was liable to be dismissed. On 20-1-1978, the learned District Munsif, Devakottai, dismissed I.A. No. 457 of 1977 holding that the reasons given by the petitioners in support of their petition to set aside the ex parte decree, were not true and that No. sufficient cause for their non-appearance had also been made out. Aggrieved by this, the petitioners and others preferred C.M.A. No. 26 of 1978 before the Sub Court, Devakottai. On 6-2-1979, the learned Subordinate Judg concurred with the conclusions of the learned District Munsif and upholding the Civil Miscellaneous Appeal. It is not now in dispute that the order in C.M.A. No. 26 of 1978, Sub Court, Devakottai, has become final, either on account of further proceedings not having been taken or such proceedings having been dismissed in limine. Thereafter, on 31-3-1982, the 1st respondent herein filed I.A. No. 879 of 1982 in O.S. No. 197 of 1967, for the appointment of a Commissioner to divide the properties in accordance with the preliminary decree and for passing a final decree, inclusive of mesne profits. In the statement of objections filed by the petitioners, they contended that the decree obtained by the 1st respondent herein in O.S. No. 197 of 1967 is a nullity, as it had been obtained by fraud and collusion. In Paragraphs 8 and 9 of the statement of objections, the petitioners stated that while negotiations for settling the disputes were going on, the 1st respondent managed to turn down the request for adjournment of the case, which was posted to 24-2-1977 and that the decree had been obtained by the 1st respondent as a result of fraud and collusion, which could be impeached under Section 44 of the Indian Evidence Act. The learned District Munsif, considering the objections thus raised by the petitioners, took the view that the prior preceedings in I.A. No. 457 of 1977 culminating in the dismissal of C.M.A. No. 26 of 1978, would preclude the petitioners from raising any objection regarding the invalidity of the preliminary decree passed on 24-2-1977 in O.S. No. 197 of 1967 and appointed a Commissioner for the purpose of dividing the properties in accordance with the preliminary decree to facilitate the passing of a final decree. It is the correctness of this order, that it challenged by the petitioners in this Civil Revision Petition.
2. Learned Counsel for the petitioners, relying upon Section 44 of the Evidence Act, contended that it is open to the petitioners to plead the invalidity of the preliminary decree on grounds of fraud and collusion, even though they might have failed in their prior attempt to set aside the same. According to the learned Counsel, the view taken by the court below that the prior proceedings in I.A. No. 457 of 1977 would bar an objection being taken in this regard by the petitioners, is not correct. Reliance was placed by the learned Counsel for the petitioners in this connection upon the decisions in Shewa Lachha v. Bhawarilal ; Khired Chandra v. Banshidhar A.I.R.1978 Orissa 111 and Vellappan v. Peter Thomas A.I.R. 1979 Ker. 195. Per centra, learned Counsel for the 1st respondent submitted that in view of the prior proceedings unsuccessfully taken by the petitioners and others in I.A. No. 457 of 1977, the validity of the ex parte decree passed on 24-2-1977 had been upheld and that adjudication would constitute res judicata and the petitioners cannot therefore be permitted to invite the court at the stage of execution to go being the decree. Learned Counsel further submitted that Section 44 of the Evidence Act does not confer any substantive right on the petitioners to impeach the decree, but is in the nature of an enabling provision with reference to procedure enabling a party, against whom a judgment in one proceeding is fought to be relied in evidence, in another, to show that the judgment so relied on was obtained by fraud or cellusion or rendered by a court incompetent to deliver the same and therefore, the Court cannot be invited to set aside the decree at the instance of some of the parties claiming that it was obtained by practising fraud. Counsel further pointed out that even on the assumption that Section 44 of the Evidence Act would apply, the allegations of fraud and collusion set out by the petitioners are very general and vague and devoid of particulars and no decree could be set aside on such general allegations relating to fraud and collusion, without specific details and particulars. Reliance in this connection was placed by the learned Counsel in Pul in Behari Dey v. Satya Charan Dey 70 I.C. 548 : A.I.R. 1923 Cal. 79 and Bishundee Narain v. Seegeni Rai .
3. The first and foremost question that has to be considered is whether the petitioners are in any manner precluded from setting up the plea regarding the invalidity of the decree by reason of the prior proceedings in I.A. No. 457 of 1977. It must be borne in mind that there is no dispute that the petitioners and others filed I.A. No. 457 of 1977 to set aside the exparte decree obtained by the 1st respondent on 24-2-1977 in O.S. No. 197 of 1967. Equally, there is no dispute that application was dismissed on 20-1-1978 and its dismissal was also affirmed by the appellate Court on 6-2-1979 in C.M.A. No. 26 of 1978, Sub Court, Devakottai. In effect and substance therefore, by reason of the dismissal of I.A. No. 457 of 1977 and its confirmation in C.M.A. No. 26 of 1978, there has been an affirmation in favour of the 1st respondent and against the petitioners and others of the ex parte decree already passed on 24-2-1977 in O.S. No. 197 of 1967. Even in the course of that application, the petitioners herein and others had set out that the 1st respondent did not inform the Court about the pendency of the panchayat proceedings with reference to the subject matter of the suit in O.S.197 of 1967 and another suit and take an adjournment, as premised and that led to the passing of an ex parte decree against them. In other words, according to the petitioners, the 1st respondent withheld the proceedings before the Panchayat and had thus invited the Court to pass an exparte decree in his favour and against the petitioners and others. This however was not accepted by the court, which disposed of I.A. No. 457 of 1977 against the petitioners and others and the appellate Court also affirmed that finding in C.M.A. No. 26 of 1978. It follows therefore that the grounds, upon which the petitioners wanted the Court to set aside the ex parte decree, had not been accepted. Even assuming that the petitioners had other grounds, as for instance urged now in the statement of objections raised by them to the application for the appointment of a Commissioner taken out by the 1st respondent, they should have set out those grounds also in I.A. No. 457 of 1977. In other words, this would be a case, to which Explanation (4) to Section 11, Code of Civil Procedure, would stand attracted and the petitioners would therefore be precluded by the principles of res judicata from urging other grounds to reopen the decree already passed. In Sri Sadgameswaraswamy Temple v. A.M. Kunhame (died) 100 L.W. 41, I had occasion to consider the applicability of the principle of res judicata with reference to proceedings not originating by the presentation of a plaint. It was held that the foundation of the general rule is that it is in the interest of public at large that a finality should attach to decisions of Courts of competent jurisdiction and that it is also in public interest that a litigant should not be twice vexed with reference to the same litigation and further that the form of proceedings taken is immaterial, provided it was for the same cause. In view of this, there is no doubt whatever that by reason of proceedings culminating in C.M.A. No. 26 of 1978, Sub Court, Devakottai, the petitioners cannot now be permitted to raise any objection regarding the invalidity of the decree obtained by the 1st respondent in O.S. No. 197 of 1967.
4. It now remains to be considered whether the petitioners can be allowed to fall back upon Section 44 of the Evidence Act. It will be useful in this connection to refer to the decision of this Court in V. Thiagarajan v. Mohammed Umar Sait (1978) 1 M.L.J. 5. Therein, a suit for recovery of amounts on a prenets was instituted under the provisions of Order 37, Code of Civil Procedure, and conditional leave to defend the suit was granted. The condition not having been complied with, the suit was decreed. Meanwhile, against the order granting conditional leave, further proceedings were taken, as a result of which, time for depositing the amount to secure the benefit of conditional leave, was extended; but even before the extended time could expire, the court had passed a decree unaware of the order granting extension of time. Thereafter, an application was filed to set aside the ex parte decree and that application was dismissed. Later, an application purporting to be under Section 44 of the Evidence Act, was filed praying that the decree should be set aside, as it was obtained by fraud. The Court, which passed the decree, set aside the same on payment of costs and in the course of a further revision before this Court, it was contended that Section 44 of the Evidence Act does not confer any substantive right on the parties, as it related purey to procedure and that the finality obtained by the dismissal of the application to set aside the ex parte decree, could not be reopened. Referring to these contentions, this Court pointed out that Section 44 of the Evidence Act finds a place under the heading ‘Judgments of Courts of Justice, when relevant’ and that the provision related to procedure; but does not confer any right on the party. It was further laid down that all that Section 44 lays down is that if a judgment is sought to be relied upon in a proceeding, it will be open to the party, against whom the judgment is proved to establish that judgment was obtained by fraud and that is for from saying, a Court has jurisdiction to set aside the decree under Section 44 of the Evidence Act at the instance of one of the parties, claiming that it was obtained by fraud. In addition, it was also laid down that the finality of a decree obtained by the dismissal of the application to set aside the ex parte decree, would bar the court from setting aside the decree in any manner. In my view, these principles laid down in the decision referred to earlier, would squarely govern the present case as well. In view of this, it is not necessary to advert to the decisions relied on by the learned Counsel for the petitioner or the other submissions made by the learned Counsel for the 1st respondent as well as the decisions relied on by him. The court below was quite right in over ruling the objections raised by the petitioners and in directing the appointment of a Commissioner for working out the rights granted in favour of the 1st respondent under, the preliminary decree dated 24-2-1977. Consequently, the Civil Revision Petition fails and is dismissed with costs of the 1st respondent. Counsel fee Rs. 250.